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Copy 1 



STENOGRAPHIC REPORT 



OF TH^ 



Arguments and Proceedings 



BKyORE TMU 



committee of three, 



APPOINTED BY THB; 



COMMANDER-IN-CHIEF 



OF THK, 



Military Order of tbe Loyal Legion of the United States. 



Headquarters of the Ohio Commandery, 



MASONIC temple, CINCINNATI, 



OCTOBER 11, 1904. 



STENOGRAPHIC REPORT 



OF THE 



Arguments and Proceedings 



BEFORE THE 



COMMITTEE OF THREE, 



APPOINTED BY THE 



COMMANDER-IN-CHIEF 



OF THE 



Military Order of the Loyal Legion of the United States. 



Headquarters of the Ohio Commandery, 
masonic temple, cincinnati, 

OCTOBER 11, 1904. 



INTRODUCTORY. 



The following summary of the facts will conduce to a clear 
understanding of the points involved in the proceedings and argu- 
ments that follow : 

( I ) At the stated meeting of the Ohio Commandery held on 
November 4, 1903, the following amendments to the then-existing 
By-Laws of the Commandery were unanimously adopted in due 
course and order of business : 

Sec. 3. The Recorder shall have printed on one ticket the 
names of all Companions properly nominated in accordance with 
the provisions of Section i, and forward a copy of the same to each 
Companion with his regular circular of announcements for the May 
meeting, with the request that he indicate with a cross (X) mark, 
in ink or with an indelible pencil, the name of the nominee for each 
ofifice for which he desires to vote, seal the same, write his name on 
envelope and return the same to the Recorder in the envelope fur- 
nished him for the purpose. 

Companions who do not so return their ballots by mail may 
vote in person at the annual meeting. 

Sec. 4. Immediately after the reading of ithe minutes at the 
annual meeting, the tellers and clerks shall take a convenient place 
in or near the assembly room of the Commandery ; the 
Commander shall declare the polls open, and Companions present 
may then deposit their ballots, and the Recorder shall then deliver 
to the tellers of all ballots of Com'panions received by mail, to be 
counted as ballots cast in person. When a reasonable time has 
been allowed for the casting of the ballots (to be determined by 
the Commander, or by the Commandery, if objection be made to 
the Commander's decision) the Commander shall declare the polls 
closed, after which no ballots shall be received. The tellers and 
clerks shall then retire to a private room, ascertain the result of 
the ballot, and report to the Commandery ; and those having a ma- 
jority of the votes cast for each office to be filled shall be declared 
by the Commander as duly elected to serve during the ensuing 
year. 



(2) On February 4, 1904, Companion Cornelius Cadle filed 
with the Recorder a so-called appeal, requesting that it be forward- 
ed by the Commandery-in-Chief for a decision by that body as to 
the constitutionality of the mode of voting contemplated by the 
amended by-laws, which was forwarded. 

(3) The Commander of the Ohio Commandery, upon sug- 
gestion of the Board of Officers, in view of the meeting of the 
Commandery-in-Chief, to be held in Cincinnati in October en- 
suing, appointed a committee of the following named Companions 
to act as counsel for and in behalf of the Ohio Commandery in the 
proceedings upon said appeal : 

Brevet Major Lewis M. Hosea, Chairman. 

Brevet Brigadier General B. R. Cowen. 

Brevet Lieutenant Colonel W. R. Warnock. 

First Lieutenant A. B. Isham. 

Major General J- Warren Keifer. 

Brevet Brigadier General Charles H. Grosvenor. 

(4) The Reference Committee of the Commandery-in-Chief, 
consisting of General John R. Brooke, of Pennsylvania ; General 
Charles King, of Wisconsin, and Major W. P. Huxford, of Dis- 
trict of Columbia, met at the rooms of the Ohio Commandery, at 
Cincinnati, on the day preceding the meeting of the Commandery- 
in-Chief, at the same place, and the arguments of a preliminary 
nature which follow were presented to said committee. The re- 
port of the committee to the Commandery-in-Chief, adverse to the 
by-law in question, was supported against a motion to table by ;? 
margin of very few votes ; and, on motion to adopt, was upheld by 
a slightly larger plurality. No stenographic rejxirt of the argu 
ments before the Commandery-in-Chicf was permitted to \ye 
taken. 

(5) The report of the committee was based on a previous 
action of the Commandery-in-Chief in 1886, upon a "feigned issue" 
presented by the Ohio Commandery. A proix)sed by-law was 
appealed to the Commandery-in-Chief. covering substantially the 
same ground, and the Commandery-in-Chief adopted the report 
as its oi)ini()n. The Committee of Reference in 1886 considered the 
question as one "regarding tlie voting by proxy," and were o» 
ojMnion "that, under the constitution of the order, the proposed 



4 

change would be contrary to the spirit, if not the letter, of that 
instrument ;" but that the "subject was worthy of very careful 
consideration by the congress of the order," and recommended the 
"reference of the matter to the Committee on Revision, created by 
the Fifth Quadrennial Congress." 

(6) The action of 1886 was claimed to be without force 
as a governing precedent, for reasons shown in the argument here- 
in. In the argument before the Commandery, it was shown thai 
in 1903 the Commandery-in-Chief had practically settled the mat- 
ter by adoption of the following decision and declaratory resolu- 
tion, in re Smedburg : 

"Article XVI., Sec. 3 of the constitution provides that 
The Chief and Supreme Judicial power shall be vested in the 
Commandery-in-Chief. For the exercise of judicial power a con- 
crete case must be presented in an orderly manner, on which the 
judgment of the Commandery may operate as a final determina- 
tion, and the action of this Commandery invoked either by a Com- 
mandery or a member of the Order aggrieved by its action on an 
appeal transmitted through his Commandery." 

{For full text of the By-Lazv appealed from, see last page, 
foUoiving the argument.) 



THE CASE OF THE OHIO COMMANDERY 



AS PRESENTED BEFORE THE 



COMMITTEE OF THE COMMANDERY-IN-CHIEF. 



Military Order of the Loyal Legion of the United States, 

Headquarters Commandery of State of Ohio, 

Masonic Temple, Cincinnati, October ii, 1904. 

The Recorder-in-Chief, having officially notified the Ohio 
Commandery of the Loyal Legion that a committee of three, viz : 

General John R. Brooke, 
Major W. P. Huxford, 
General Charles King, 

Had been appointed by the Commander-in-Chief to report in 
writing to the Commandery-in-Chief their decision as to the con- 
stitutionality of By-Law III., designating the mode and manner of 
electing officers of this Commandery now in force, the Commander 
appointed the following committee to take full charge of the Com- 
mandery of the State of Ohio's interest in the said matter, and to 
represent this Commandery before said committee and the Com- 



mandery-in-Qiief at its meeting in this city on the I2th of Octo- 
ber, 1904: 

Brevet Major Lewis M. Hosea, U. S. A. (resigned), ex- 
Commander, Chairman. 

Brevet Brigadier General B. R. Cowen, U. S. V., ex-Com- 
mander. 

Brevet Lieutenant Colonel W. R. Warnock, U. S. V., ex- 
Commander. 

First Lieutenant A. B. Isham, U. S. \'"., ex-Commander. 

Major General J. Warren Keifer, U. S. V., ex-Commander 

Brevet Brigadier General Chas. H. Grosvenor, U. S. V., ex- 
Senior Vice Commander. 



The Special Committee of Three from the Commandery-in- 
Chief convened at the Headquarters of the Commandery of the 
State of Ohio, Masonic Temple, Cincinnati, on the above date ; 
whereupon the following proceedings were had and arguments 
heard, as reported by the official stenographer employed by the 
Ohio Commandery for the purpose of preserving a record of the 
same, to-wit : 

The Special Committee having taken their places, General 
John R. Brooke, Junior Vice Commander-in-Chief, presiding, the 
Chairman said : 

General Brooke — Gentlemen, we are assembled here as the 
committee appointed by the Commander-in-Chief of the Order, to 
hear the Ohio Commandery on the subject of certain by-laws ; and 
the first thing that strikes this committee is that a stenographer 
has been appointed to be the official stenographer of the Ohio 
Commandery, and is present to take notes. 

This committee desires to know if those notes are to appear 
in the newspaper reports tomorrow morning, or at any other time ? 
If so, the committee desires to know that now. 

Major Hosea — I think I can answer tliat for the committee, 
that it is only for the purpose of preserving an official record of 
the whole proceedings — not for newspaper publication. 

General Brooke — ^Very good. This committee is now ready 
to proceed in the way of hearing anything that they desire to say 



on the part of the appellant or of the Commandery of Ohio, 
through its committee. 

Colonel Cadle — Mr. Chairman, I have prepared my argu- 
ment, and Major Van Dyke is to do the talking. We wish to 
know which is to be heard first, the appellant, or the other side ? 

Major Hosea — I think — if the members of the committee 
will permit me — there ought not to be any question about that. 

The Commandery of the State of Ohio is here upon the de- 
fensive ; an appeal is taken from its order, and the burden of proof 
ordinarily is upon the one who presents the appeal. 

General Brooke — The committee was just about to an- 
nounce their decision, that it is ready to hear the appellant. 

Major Van Dyke — I take it upon myself to say that I 
appear before this committee as much in behalf of the Ohio Com- 
mandery as the committee selected for that express purpose, be- 
cause the interests of the Ohio Commandery in this matter are 
paramount with me, as with them. 

The by-law, as passed by the Commandery, was passed 
against tlie protest of several who did not make themselves very 
prominent in opposition to it. However, that is a matter — 

Major Hosea — I dislike to interrui>t the gentleman, but my 
colleague. General Grosvenor, states, and I think with great pro- 
priety, that, inasmuch as we desire to present a question of the 
jurisdiction of this committee, we, perhaps, ought to take the lead 
in that, because if the point should be sustained, the further hear- 
ing of argument would be unnecessary. 

General Brooke — Let me understand the point as to juris- 
diction ; what do you mean ? 

Major Hosea — We desire to present the point that this com- 
mittee has no jurisdiction to hear this matter ; we object to the — 

General Brooke — To the jurisdiction of the committee? 

Major Rosea — To the jurisdiction of the committee; and 
if the committee proceeds in accordance with ordinary legal prac- 
tice, I think that should be first heard. 

General Brooke — Very well; that is proper, that the plea 
to the jurisdiction should be heard. 



8 

ARGUMENTS ON THE MATTER OF JURISDICTION. 

Major Hosea — The commktee is appointed under the reso- 
lution adopted by the Commandery-in-Chief at its 1903 meeting, 
viz : 

"Companion J. Langdon Ward submitted the fol- 
'lowing: Resolved, That in all cases to be submitted 
for the decision of the Commanidiery-in-Chief the papers 
shall be forwarded to the Recorder-in-Chief in triplicate, 
and where practicable, at least ninety days prior to the 
next meeting of the Commiandery-in-Chief ; that as soon 
as practicable after the receipt of the papers in each case 
a committee of three shall be appointed by the Coni- 
mander-in-Chief for its consideration, to each of whom 
one copy of the papers shall be forthwith transmitted 
by the Recorder-in-Chief. The committee so appointed 
shall report in writing, and return tO' the Recorder-in- 
Chief the copies of the papers submitted to them. One 
copy of such papers shall be filed with by the Recorder- 
in-Chief, and one copy, with the decision of the Com- 
miandery-in-Chief thereon, returned to the Commandery 
submitting the case." 

The jurisdiction of the Commandery-in-Chief in a case like 
the one before the members of this committee is to be found in an 
article of our constitution, which provides that the supreme judicial 
power of the Order shall be vested in the Commandery-in-Chief ; 
also, the supremie executive power. 

Another provision is that the legislative power of the Order 
shall be vested in the Congress of the Order. 

Here }'ou find a complete division of governmental powers 
precisely analogous to the division of powers in the United States 
Government, as found in the Constitution of the United States. 

What judicial power is I would not have to present to a commit- 
tee^ — or body — of lawyers ; and, perhaps, it is not necessary at the 
present time to go very deeply into that question. Suffice it to 
say — and it is only by reason of the presumed ignorance of this 
committee in matters of law that I make this remark, although 
possibly it is a question that appeals to the intelligence of every 
reading man — ithat judicial power has its limitations. It is not 



9 

parliamentary power ; it is not executive power ; it is the power 
to hear and decide causes. And one of the limitations upon ju- 
dicial power is that it must and can only act upon a case that 
arises in ordinary litigation, where a right has been infringed, and 
where a remedy is sought between individuals, or between States, 
or between corporations and individuals, etc. In other words, 
there must be an actual case of a right being infringed and liti- 
gation arising thercfronn before the judicial power can act. 

Now it is not in accordance with the practice of courts to 
appoint a certain number of its members to hear and pass upon a 
case which is to come later before the Court for consideration ; the 
old principle, "delegatus non potest delegare," applies here: A 
power which is delegated can not be re-delegated. We are entitled 
to a hearing before the whole Court, and not by a committee of a 
few of the Judges of that Court ; so that I make, therefore, the 
point that in passing this resolution the Cominandery-in-Chief 
exceeded its powers. 

Moreover, it provides for a consideration by you of the facts 
which are to come for decision before the Commandery-in-Chief. 

But as others are to speak, I will not extend these remarks 
further than to say, that, viewing this matter as we do, we think for 
this reason first, that the committee has really no jurisdiction; that 
the authority found in this resolution is null because it is a resolu- 
tion improvidently made by the Commandery-in-Qiief, without due 
consideration of the distinction between its parliamentary powers 
and its judicial powers. 

Another point, perhaps bearing upon this, has reference to tlie 
appeal itself. That will be more clearly apparent when the nature 
of the appeal — when the circumstances of the appeal, and the facts 
surrounding it — arc brought to your attention by those who will 
present this appeal. 

I would state what, perhaps, the committee already know, 
that I appear here merely by the selection of the Commandery of 
Ohio as the Chairman of a Committee of Counsel, and my asso- 
ciates on that committee, General Warnock, General Grosvenor, 
Doctor Isham and General Cowen, are all here, and I, therefore, 
will end these remarks, with due modesty, out of consideration for 
the distinguished gentlemen who desire to be heard. 



lO 

General Grosvenor — I would like to be heard just a moment 
on this question myself. 

My point can be put in very simple phraseology, can be un- 
derstood without any particular citation of legal authorities. 

There is not any appeal here, in my judgment. What is the 
indispensable quality of an appeal? An appeal is described and 
must be described as a claim upon the part of somebody to a su- 
perior body to do some act ; to restore to him something that he 
has been deprived of; to right some wrong that has been perpe- 
trated against him. 

Now is it possible that every time a mem.ber of one of these 
subordinate bodies concludes to take it into his head to get an 
opinion from the Commandery-in-Chief, every time that he can 
discover some act on the part of the particular Commandery to 
which he belongs, to furnish an opportunity to ask for a judicial 
opinion from the dominant body as to whether or not his orignai 
opinion is right or wrong, he may do so? 

Now, that is all there is in this question, and it can not be 
extended beyond that exact situation. 

This Commandery proceeds to adopt a by-law. Nobody ob- 
jects to it, and from a parliamentary standpoint everybody voted 
for it. It is not disclosed here that anybody voted against it. 

Major Hosea — The record shows that it was unammously 
adopted. 

General Grosvenor — The record shows, as suggested, that 
it was unanimously adopted ; it went into force ; it was acted upon 
a long time afterward; some member of this Commandery con- 
cludes that he would like to have an opinion of the dominant body 
as to whether that by-law ought to have been adopted or not. I 
submit that that is no appeal ; I think there is no one quality of an 
appeal in the situation. If you open that sort of door, I can take 
the record of any one of these subordinate Commanderies and 
crowd the Commandery-in-Chief with questions that will occupy 
the whole of their time. 

If somebody thinks he has been injured, the time and place 
to make his arraignment was to protest against passing this by- 
law, and show wherein his rights have been invaded. Suppose, 
for instance, that an election has taken place under this by-law, 
that this by-law has been operated under ; somebody who has been 



II 

defeated for an office, or somebody who wishes to protest against 
the election, he has a right, perloaps, to be heard here : but there 
is nothing disclosed here whatever. It is merely asking an opinion 
from the Commandery-in-Chief as to whetlier or not a certain by- 
law' is a competent and proper and legitimate by-law of the sub- 
ordinate Commandery. 

That is my proposition precisely. 

Colonel Warnock — ]\Ir. Chairman, I would like to make a 
suggestion or two along the same line. 

There are two reasons why I think this connnittee has no 
jurisdiction over this matter — two reasons which I w'ill give in 
their inverse order, the last being referred to by General Gros- 
venor. 

There is no appeal here ; an appeal must be taken from some 
act that has been done by the Commandery to which parties have 
objected at the time. As General Grosvenor has well said, you 
may cook up one afterwardS', and may pick out anything in the 
record and ask for a judicial interpretation, and there would be 
no end to the questions that might be brought before the Com- 
mandery-in-Chief. In my experience in attending these Com- 
manderies I have known perhaps a dozen instances where matters 
have been dismissed because of the fact that there was no case 
made. Nobody had had a right denied him ; nobody had a right 
that was being withheld from him, and the refusal to accord 
which was being appealed from. An appeal must be from a right 
that has been denied, or infringed ; and neither has been in this 
case, liecause the record shows that no one of these parties who 
were present at the time made any protest or any objection what- 
ever; so that, upon the general proposition of an appeal, there is 
no question here, but a simple abstract one which the Command- 
ery-in-Chief has, from its very first existence, refused ever to en- 
tertain. 

Now, as to the other; we object because we think that this 
committee has been illegally and unconstitutionally provided for. 
What is the Commandery-in-Cbief ? It is a power, it is a body 
composed of the Commanders, ex-Commanders, Vice ex-Com- 
manders, Recorders and ex-Recorders, for the purpose of consid- 
ering the judicial questions that arise in the Commanderies, and 
to exercise the chief executive power. 



12 

The Commandery-in-Chief of 1903 presumed to add to its 
duties, to add to its functions a sort of a side body of men, and to 
invest them with the same authority. In 1903 they said there 
shall be a committee composed of persons who were appointed by 
the Commander-in-Chief for the purpose of considering the ju- 
dicial questions that are presented, and they shall then make their 
report in writing. It does not provide for any hearing before that 
committee ; it does not provide for the Commandery-in-Chief hear- 
ing the appellees, or appellants either, for that matter ; but they 
are simply to take original jurisdiction of the question that is to be 
presented to them through the Recorder-in-Chief without any no- 
tice. Now, what are they going to make their report to? Why, 
they are to make their report to the succeeding Commandery-in- 
Chief, a different body of men. Ever since 1903 there have been 
new persons who have become eligible to membership here. What 
right have they to pass upon the report of a former committee? 
None whatever. During the time elapsed since 1903 there have 
doubtless occurred deaths of members, and others have been in- 
stalled to memibership here. It is entirely a distinct body of gentle- 
men that is here. A committee was appointed by the former body, 
A body composed of different constituent parts to the present 
body, can not, of right, report to a successor; all these questions 
are and of right ought to be brought before the Commandery-in- 
Chief that is to hear them. The present Commandery is that of 
1904, assembled in the city of Cincinnati for the first time, which, 
prior to this timte, had no existence. This appeal, if there is 
any at all, brought in proper form, should be announced by the 
Recorder to this Commandery-in-Chief. This Commandery-in- 
Chief then takes what course it chooses. It may appoint a com- 
mittee, or it may delegate the power to the Commander-in-Chief to 
appoint the committee ; but it has not had the opportunity. It is 
cut out of that ; it is denied the right to a power that is given by the 
constitution; so that we are here confronting a committee, with 
all due respect, whom we have the highest confidence and respect 
for individually and collectively, but that is an unconstitutional 
committee, an illegally constituted committee. The committee of 
1903 had not any power to take away from the Commandery-in- 
Chief its prerogatives. And we are here not only as members of a 
committee appointed to present this matter on behalf of the Ohio 



13 

Commandery, but we are here as well as members of this Com- 
mandery-in-Chief, to ask for our rights. 

We say you have no jurisdiction. We have a right to have 
the matter brought before the Commandery-in-Chief ; we have 
a right to there make our own motion as to how this is to be con- 
sidered. The Comniandery-in-Chief of 1904 demands its rights, 
and has a right to say how this shall proceed. I think the sooner 
that can be off our record, and off our books, that assumption of 
power on the part of the Commandery-in-Chief of 1903, the better. 

The Commandery-in-Chief has no legislative power; it has 
nothing but judicial powers. You act as a court, not upon ficti- 
tious cases, but upon actual cases that are brought here. As was 
well said by General Grosvenor, you are here sitting as a court, 
and can only sit to decide questions coming up in the regular way 
to be heard by courts. 

I submit, in all fairness, that the Commandery-in-Chief of 
1904 has the right to originate its own committees ; it may delegate 
that to the Commander-in-Chief to appoint the committee to hear 
this, and he may appoint these gentlemen, but I hope he will be 
regular about it. 

If gentlemen are to be technical and stand upon their legal 
rights, we desire to stand upon our legal rights. 

If it goes into a Court of Equity we would have something 
more to say ; but I respectfully submit that the committee has no 
legal rights in this case. 

General Brooke — Will the Companion inform me, or the 
committee, when the Commandery-in-Chief of 1904 was born? 

General Warnock — When it was born? \W"11, I suppose 
that the Commandery-in-Chief of 1904 was, just like Topsy, it 
"just growed." I suppose it is like, perhaps, the American Con- 
gress, we have it always with us; but it has different component 
parts. New parts come into it, and each succeeding one is su- 
preme. It can make, and it can unmake, and it is not bound by 
any of its predecessors, except as to mere constitutional questions. 

General Brooke — The Commandcry-in-Chief of 1904 is not 
yet organized. 

General Warnock — That is the reason that we feel that tliis 
is all premature ; that this ought not to be heard until it is organ- 
ized and says how we shall proceed. 



H 

General Grosvenor — That is just the point. 

General Warnock — The Commandery-in-Chief may see fit 
to appoint a committee of six men upon its own motion; it has 
the power to do so; it is not bound bv the 1903 Commandery-in- 
Chief. 

General Brooke — That is not the question I asked the Com- 
panion; he has answered that very courteously. 

Captain John O. Foering — I do not want to take issue on 
this question ; but when committees are appointed by a preceding 
Commandery, they are supposed to report to the next meeting of 
the Commandery succeeding them ; you would never get through 
with your business if you would appoint a committee of this Com- 
mandery, and that question came up at the next meeting in 1905, 
the same issue came up. The committees, with our short sessions, 
^an never get through. A committee appointed today will proba- 
bly ask to report in 1905. The same question will arise then, no 
jurisdiction — 

Major Hosea — I rise to a point of order ; I think it only fair 
to say that this is not an open meeting. 

Major Huxford — I would like to ask if, in the judgment of 
Companion \\'arnock, the Commandery-in-Chief is not a con- 
tinuing body ? In that does it differ from any parliamentary body ? 

General Warnock — I should say not. That is, not for the 
purpose of fastening upon a succeeding Commandery-in-Chief ac- 
tion which they have taken on a subject generally when a particu- 
lar matter comes up that affects the succeeding Commandery-in- 
Chief. There are certain general principles that run all the way 
through, I grant you, certain matters of practice ; but the point is 
this— 

General Brooke — The question is very plain ; those coming 
in anew as members of the Commandery-in-Chief are much in the 
minority compared to those who hold over during their lives, as 
far as their numerical strength goes. 

General Warnock — They have the same rights; but the 
principal thing I object to is this, that a preceding Commandery-in- 
Chief endeavors to provide for something that must and will occur, 
subject to adjudication by a succeeding Commandery-in-Chief. 
It would be very competent for this Commandery-in-Chief of 
1904 to appoint a committee ; and they might appoint it with in- 



15 

structions to report at a succeeding time, because an appeal has 
been made to this present body ; but in 1903 they seek to appoint a 
committee that shall take up and consider questions growing out 
of matters that will or may occur after the adjournment of 1903. 

Gexeil\l Brooke — Therefore you hold — let me understand 
you — ^that the Commandery-in-Chief of 1904 is now a living body? 

General Warnock — Will be after 10 o'clock. 

Gener.\l Brooke — Will be ; is it now ? 

General Warnock — No, sir. 

General Brooke — What then is there to prevent the action 
of the Commandery-in-Chief of 1903 taking any action that it 
sees proper? 

General Warnock — Because the Commandery-in-Chief of 
1903 was functus officio, was dead, at the moment it adjourned. 

General Brooke — But the resolutions adopted by the Com- 
mandery-in-Chief of 1903 are living resolutions? 

General Warnock — But we claim that those resolutions are 
unconstitutional and illegal. 

General Brooke — The question of the constitutionality of 
that should go to the Congress. 

Major Hosea — I want merely to add a word — 

General Brooke — I think that this committee has a right to 
ask any one speal-cing before it any pertinent question which may 
arise in their minds. 

Major Hosea — Surely. 

General Brooke — Therefore, it is very necessary that you 
should advance argument before this committee, which has been 
instituted in accordance with the resolutions of the Commandery- 
in-Chief of 1903, which Companion Warnock can not dispute as 
having the right to organize such committees at the time ; as he 
says now that this Commandery-in-Chief of 1904 may constitute 
committees to report to some subsequent Commandery. Where is 
the difference between the two? 

Major Hosea — My view of that, Mr. Chairman, is this : If 
the committee will kindly draw the distinction which I suggested 
in the first instance, between parliamentary powers of the Com- 
mandery-in-Chief and its judicial powers. T think the difficulty now 
before you will vanish. With respect to its judicial powers, it is a 
court — it is not a parliamentary body, but a court. And while in 



i6 

session as a court it may adopt orders proper for a court. But 
when it adjourned it was at the end of the term ; a new term of 
court will begin tomorrow. Here is a case which has come into 
the court for the consideration of the court at the new term, not 
for the consideration of the court at the term which has expired ; 
that is functus officio. 

General Brooke — Let me interrupt you to say that usually 
a court can appoint referees and have a case heard before a referee. 

Major Hosea — Quite frequently that is done. 

General Brooke — Is not this committee in the position of a 
referee ? 

Major Hosea — When the appointment of a referee becomes 
necessary, such appointment will be made by the court that hears 
the case and which decides upon the propriety and necessity of 
appointing a referee ; but the appointment of referees and masters 
has reference only to such details as are desirable to dispatch in 
order than the mind of the court may not be wearied in deciding 
the more important matters of the case, with matters of detail. 

General Brooke — Excuse me, I want to shorten the discus- 
sion as much as possible. Companion, because the action of the 
committee will necessarily be prolonged, or rather its labor will 
be prolonged by a prolonged discussion as to judicial rights — 

Major Hosea — This is a judicial question, Mr. Chairman. 

General Brooke — And also as to the constitution of the com- 
mittees, its legality, etc. ; but ,the Commiandery-in-Chief lives al- 
ways. It is not dependent upon its individual organization. "Le 
Roi est fiwrt, five le Roi." The President dies ; long live the 
President ! There is no interregnum ; the Commandery-in-Chief 
represents the head of our Order, and it never dies. It not that so ? 

Major Hosea — That is quite true, if 3'our Honor please. I 
will endeavor to shorten this discussion as much as I can, and in a 
word, say all that I desire to say further. 

The real question here has been decided for 400 years ; a 
similar question arose before the court of Kings Bench, in England, 
in the troublous times of King James I., when it was sought to 
obtain the individual opinions of judges before the trial. Lord 
Chief Justice Coke then replied to the King's Ministers : "The 
Judges are not to give their opinions by fractions, but entirely; 
that is, as a whole, according to the vote, whereupon they should 



17 

settle upon conference. This taking of opinions singly and apart 
is new and dangerous." The proposition here is to submit the 
question of this appeal to not all of its members of the court, but 
to three of its members in advance of a hearing. 

The proposition is one which, as I say, addresses itself to the 
mind of any lawyer as one so preposterous, so contrary to every 
sense of right, that with all due respect to the members of the 
committee as individuals (I take it that goes without saying), we 
protest against this judicial committee of the court to which this 
action is appealed. We say that the appointment of the committee 
was wrongful. The circumsances of its appointment, we, if neces- 
sar}% will discuss later; but I do not desire to prolong this dis- 
cussion, and will let it rest with that. 

Major Huxford — I want to ask Companion Warnock, and 
also Companion Grosvenor, if it has not happened frequently in 
the course of legislation in the highest legislative body in the land, 
that committees have been appointed prior to the adjournment of 
one Congress, to report to the next on certain matters ? 

General Grosvenor — Yes, but it done by the legislative 
body which has the express power to create such committee for a 
particular purpose, and because there is a question pending to be 
referred to that committee ; but did }ou ever hear of Congress cre- 
ating a committee to hear and determine every suggestion that 
somebody in the United States might make? That is my position. 

Major Huxford — It might not necessarily be every matter, 
but it may be created to hear and determine some specific thing, 
and to make a report thereon to some succeeding Congress. I 
want to know if that is not a fact that such committees are so 
appointed, and that the membership of those committees is changed 
prior to the time of their report to the next succeeding Congress ? 

General Grosvenor — Certainly not ; it can not be done. The 
committee can not change its composition, because the term does 
not expire. No committee is ever appointed to report after its 
death; and tomorrow you will be dead as a committee of the 
former House ; you will not have any existence as a committee of 
the former House ; yet }-ou are attempting to perfomi an act of 
legislation tomorrow, when you died at lo o'clock tonight. There 
is where you stand ; and it will show you in the most absurd ix>si- 
tion that any gentlemen ever got into. 



Major Huxford — That is a matter of opinion. 

General Gros\-exor — I did not mean that, not that any gen- 
tlemen got themselves into, but that they were placed in. 

General King — You said the miost absurd position any gen- 
tlemen ever goft into. 

General Grosvenor — I will take that back. Do not use 
that (addressing the stenographer). 

Gener.\l Warnock — There is no analog}-, because this is a 
judicial body. 

Major \^\n Dyke — It seems to me that these gentlemen 
seem to think that you have complete jurisdiction of this matter; 
it seems to me that they think you are to decide it once for all ; 
that is the way they seem to talk ; I may have misunderstood — 

General Brooke — Are you done, gentlemen ? 

Major Hosea — We have nothing further, I believe, on our 
side to suggest. 

General Brooke — Gentlemen, it may be unnecessary for me 
to read the action of the Commanderv^-in-Chief in this case. (Here 
the Chairman read a letter beginning) 

"Philadelphia, September i, 1904. 
"Colonel J. P. Nicholson. Recorder-in-Chief, Etc., 

"Dear Sir and Companion — I am in receipt of your letter of 
the 30th ultimo, referring to the receipt by you of the case sub- 
mitted by the Ohio Commandery concerning proxy voting," etc. 

You have seen that letter before, have you not? 

Major Hosea — I have not. 

General Brooke — Under this the commiittee deems that in 
the execution of the duties devolved upon it by the Commander-in- 
Chief it will proceed in this case. 

General Grosvenor — I would like to ask the commission — 

General Brooke — And further, having made its report it will 
then be for the Commandery-in-Chief of 1904 to take such action 
as it may deem proper in the case. 

General Grosvenor — That is what I wanted to inquire, 
whether your construction of the letter is that you will decide this 
question ultimately and finally, and that there is to be no hearing ; 
if not. we can be heard in the Commander}'. 

Gener-\l Brooke — Certainlv. 



19 

General Grosvenor — Then I ask leave to respectfully with- 
draw from further consideration of this case. 

General Brooke — Do not take this down. The Commandery- 
in-Chief never dies, you admit that ? 

General Grosvenor — I admit that for certain purposes. It 
dies on its adjournment for aiU legislative purposes instantly. 
General Brooke — You claim this is a judicial purpose? 
General Grosvenor — I do. Therefore I say it can not come 
here to determine that. 

Major Hosea — I would like to be enlightened. I do not quite 
see the connection between the letter in question and the proposed 
action of the committee. I beg to be informed what the connection 
is. Is it that the Commandery of Ohio, through some mistake 
of a clerk who penned that letter, is to be bound by a recital that 
it has submitted a cause to the Commandcry-in-Chief ? I do not 
quite see the connection. 

General Brooke — That is what the Commander-in-Chief 
says-: "To whom shall be submitted the case submitted by the 
Ohio Comimandery," 

Major Hosea — The Ohio Commandery has never submitted 
any case ; it certainly has submitted nothing to this committee. 
General Warnock — Our records do not show that we did. 
General Brooke — The Recorder of the Commandery-in- 
Chief seems to show it here. 

Major Hosea — I would ask the Chairman of this committee, 
the members of this committee, if they were not ait once advised, 
upon the appointment of this committee, by the Ohio Commandery, 
of the error in the matter, although T was not aware that it was 
embodied in this letter; or perhaps T am mistaken about that — if 
they were not advised that it was an appeal, not by the Com- 
mandery of Ohio, but by an individual member. 

General Brooke — Is it necessary to take all this down? I 
will just read you the order of the Ohio Compandery. dated 

"May i6, 1904. 
"Colonel John P. Nicholson, Recorder-in-Chief, Etc. 

"In response to your request of the 14th inst. for a copy of 
the rule and the official circular promulgating the action involved 
in the appeal made by Companion Cadle, I have the honor to 
transmit herewith such data." 



20 

November 2, 1903, you held a stated meeting of your Com- 
mandery here. The Cotmmandery-in-Chief met, I think, on the 
19th of October, 1903, and at that meeting the resolution whose 
legality you have called in question, or constitutionality rather, 
was passed, evidently for the purpose of providing some source 
of gathering for the consideration of the succeeding Commandery- 
in-Chief data upon any questions such as this, and to make report 
as the committee authorized by that resolution of the Commandery- 
in-Chief in 1903, to the succeeding meeting of the Commandery- 
in-Chief. 

I hold, gentlemen, that the Commandery-in-Chief exists al- 
ways. I may be wrong; but that is my belief, that the majority 
of this membership is, of the next preceding Commandery-in- 
Chief, the succeeding Commandery-in-Chief which meets tomor- 
row. There are a large number of members who have been 
members of the Commandery-in-Chief for many years^ — a very 
large preponderance of them.. 

This is the situation ; there has been a further communication 
here that we have had under consideration, from the Commander- 
in-Chief, and from the committee through the Recorder-in-Chief, 
of which Major Hosea is Chairman, and also from Companion 
Cadle. The Ohio Commandery has sent to each of the members 
of this committee a letter, of which the following is, so far as it 
affects this case, a copy : 

"September 10, 1903. 
"Dear Sir and Companion: 

"The Recorder-in-Chief, having officially notified the Ohio 
Commandery of the Loyal Legion that a committee of three, viz : 
General John R. Brooke, Major W. P. Huxford, and General 
Charles King, has been appointed by the Commander-in-Chief to 
report in writing to the Commandery-in-Chief their decision as to 
the constitutionality of By-Law IIL, designating the mode and 
manner of electing officers of this Commandery, now in force, I 
hereby appoint the following committee to take full charge of the 
Commandery's interest in said matter, and to represent this Com- 
mandery before said committee and the Commandery-in-Chief at 
its meeting in this city on the 12th of October next." 
(Signed by A. C. Thompson, Commander.) 

I wish to call your attention, gentlemen, to the language of 



21 

this communication, "and to represent the Comniandery before 
said committee and the Commandery-in-Chief." Certainly Com- 
mander Tiiompson felt that the report of this committee would be 
before the Commandery-in-Chief, when you read that communica- 
tion. 

General V\'arxock — I would suggest that it is not the Ohio 
Comniandery that is appealing .this case, as would appear from the 
other letter that you read. 

General Brooke — The Commander-in-Chief who wrote that 
letter is not present. 

Major Hosea — I do not quite see that our position is in any 
way different from what we understand it. Wie are appointed, it 
is true, to represent the Ohio Comniandery before this committee 
and before the Commandery-in-Chief. If I, as an attorney, were 
employed to represent a client before the court below and the Su- 
premie Court of the State, it would not necessarily follow that I 
was precluded from making all necessary objections to the juris- 
diction of the court below. It might never go to the Supreme 
Court. 

General Brooke — Don't you understand b}- what this com- 
mittee has been hearing that you have not been restricted in any 
way, possibly except a desire on the part of the commission to fin- 
ish its labors as soon as possible. 

Major Hosea — I undersitand. then, that the committee de- 
termine that it has jurisdiction to hear, and will continue, and 
make its report to the Cornmandery? 

General Brooke — We have not yet announced that. 

Major Hosea — Then we await the decision of the committee. 

General Brooke — We are still discussing the matter of the 
constitutionality of this resolution ; have you anything to say, 
gentlemen ? 

Major Van Dyne — I have nothing further to say. I may 
have a few words upon the general proposition, if the committee 
decides to continue the hearing. 

General Brooke — Supix)sc that you do not hear anything 
from the committee? The committee considers, being old soldiers, 
it will obey the order given it by constitutional authority. The 
question of the legality or the constitutionality of its existence may 



22 

be determined tomoirrow, or before the session of the Com,- 
mandery-in-Chief closes. 

The committee is ready to proceed. I understand that the 
committee in charge of the affair, so far as the Cornmandery of 
Ohio is concerned, considers itself the defendant in this case ; and 
not the one who originated the case. Do you wish to take that 
position ? 

General Warnock — We deny that we appeal from the ac- 
tion of ourselves. 

General Brooke — You take the position that you did not 
appeal. 

General Warnock — That we did not appeal, and that the 
record shows that nobody did appeal until three months after- 
wards. 

General Brooke — The record in this case appears to have 
been submitted by the Ohio Commandery. 

General Grosvenor — Yes, when it was called for. 

General Brooke — Submitted through the regular course of 
official correspondence. 

Major Hosea — I beg pardon ; the letter of Colonel Nicholson 
through a mistake so shows, but the record will be found in other 
papers and the mistake very easily corrected. 

General Brooke — That is a matter in which, I presume, 
Colonel Nicholson will take his own part. 

General Warnock — I presume the Chairman, when he reads 

that manuscript, will read that Colonel Cadle took an appeal 

from — 

(The remainder of sentence, through some cause, was lost b> 

the stenographer.) 

General Brooke — That is signed by the Recorder-in-Chief 
the 1 6th of May last. 

General Warnock — Showing the action of Colonel Cadle, 
but not the action of the Commandery. 

General Brooke — Here is the letter of Companion Cadle 
and the Recorder of the Ohio Com.mandery, dated February 4. 

(Some gentlemen approached the table and conversed with a 
m.ember of the Committee of Three sotto voce.) 

Major Hosea — We would like to be favored with the re- 
marks of the Companion. If he has any suggestions to ofifer the 
committee, we would like to hear them. 



23 

General Brooke — I beg your pardon ; I say the committee 
lias heard nothing. 

Major Hosea — If I have offended, I sincerely beg pardon; 
the gentleman is unknown to us, and we supposed he was con- 
ferring with the commit'tee, and we wanted to have the benefit of 
his conversation. 

General Brooke — That may have been upon some other 
subject ; so far as the committee is coiicerned, it knows nothing 
about that conversation. 

This is a letter addressed io the Recorder of the Gommandery 
of Ohio, dated 

"February 4, 1904. 
"Major W. R. Thrall, Recorder Ohio Gommandery of the Mili- 
tary Order of the Loyal Legion, Cincinnati, O. : 
"Dear Sir and Companion: 

"This Gommandery, at its stated meeting in October, 1903, 
having adopted an amendment to its by-laws authorizing Gom- 
panions to forward by mail their votes for officers of the Gom- 
mandery to be elected at the annual meeting in May, such votes 
to be counted by the tellers and have the same effect as ballots cast 
in person, I desire to enter my appeal to ,the Gom'mander}'-in- 
Ghief for a decision by that body as to the constitutionality of such 
mode of voting, and ask that this appeal niay be entered on the 
minutes of ithe Gommander}- and forwarded to the Gommandery- 
in-Ghief. Yours respcctfull}', Gornelius Gadle." 

This is the forvrarding letter, dated 

"May 9, 1904. 
"Colonel John P. Nicholson, 

"Recorder-in- Chief, Etc. : 
''Dear Sir and Conpanion: 

'T have the honor to enclose herewith an a])pcal from the 
action of this Gommandery to the Commandery-in-Chief. made at 
our stated mee/ting, February 3, 1904, by Companion Cornelius 
Gadle. Very truly yours. W. R. Thrall. Recorder. 

There are some further commiunications in there in answer to 
a communication — 

General Grosvexor — Will >ou kindly read for our benefit 
the letter of the Recordcr-in-Chief, Colonel Nicholson, notifying 
the Commander-in-Chief of the appeal, as they call it, the very 
first letter you read ? 



24 

General Brooke — The first letter is the one which we have 
'not got here, the letter of the Recordter-in-Chief to the Commander- 
in-Chief ; but it was evidently dated on the 30th of August last. 

General Grosvenor — I am trying to get at this — the letter 
written by Colonel Nicholson — 

General Brooke — By the Recorder-in-Chief to the Com- 
mander-in-Chief ? 

General Grosvenor — Will you kindly read that ? 
General King — That is the same thing ; I would like to hear 
you read that. 

General Brooke — "I am in receipt of your letter of the 30th 
ultimo referring to the receipt by you of the case submitted by 
the Ohio Commandery concerning proxy voting. 

"In compliance with the requirements of a resolution adopted 
by the Coimmandery-in-Chief at its last meeting, I do hereby ap- 
point the following named Companions a committee to whom 
shall be submitted the case submitted by the Ohio Commandery.' 
General Gros\'Enor — All I wanted to say was this, I have 
no doubt that the letter of Colonel Nicholson, which appears to be 
absent from the record, describes the condition exactly as the 
Commander-in-Chief has put it in this letter of appointment ; that 
is to say, he says there is a case made by the Commandery of 
Ohio— 

General Brooke — Oh, no, he does not. 
General Grosvenor — Oh, yes, he does. 
General Brooke — No, he does not say the case "made," but 
"submitted by the Ohio Commandery." (The Chairman read the 
letter same as before.) If that is not submission, I do not know 
what military language you would use in submitting a paper to 
a higher authority. 

General Grosx'enor — They submit a paper ; but there is no 
case made by the Ohio Commandery. That is the first proposi- 
tion ; second, that Companion Cadle did not appeal from any by- 
law of the Commandery providing for proxy voting, and. there- 
fore the word "proxy," which has a wide and distinct meaning, 
has worked its way into the record improvidently. I might use a 
stronger term than that. There is no "proxy voting;" and I 
should like to have seen the original paper upon which that order 
was issued ; there is no such question here. You are here to try 



25 

a question that does not arise. It w ill be enough for us to submit 
this whole case by saying that there is no by-law of the Ohio Com- 
mandery providing for "proxy voiting." Proxy voting is the sub- 
stitution of an agent to do a thing for a principal. I, A, appoint B 
to appear at a certain place and vote for me. There is no by-law 
here such as tliat. Therefore, the very keynote, the very founda- 
tion of your jurisdiction falls to pieces, for there is no such ques- 
tion here, and never will be. 

General Brooke — The committee having decided that mat- 
ter of jurisdiction, we will go on with the hearing of the case so 
far as you desire to present us, either side. It will be for the 
Commander-in-Chief ito decide whether this committee is a con- 
stitutional committee or not. Is there anything further to hear 
from you, gentlemen? If not, the committee will retire to con- 
sider the subject. 

Major Huxford — I desire to know if the appellant desires 
to be heard in this matter. 

Major Van Dyke — I have a few words to say, perhaps, some 
matters of information. The appeal from the action of the Com- 
mandcrv was made at the time of the action, or perhaps a very 
short time thereafter. That is neither here nor there — 

Major Hosea — The record shows that it w^as made in Feb- 
ruary ; the record shows that the action appealed from was taken 
in October. 

Major Van D^ke — INIy memory may not serve me right. 
The question is not here one of sentiment, not one of what will 
be the desires of the greatest number ; the question is. is this by- 
law constitutional ? That is all. The Constitution of the Order. 
Art. XVII., Sec. 4, provides that : 

"Each Commandery shall have ix)wer to adopt rules 
and regulations for its own government, which shall not 
conflict with the Constitution and By-Laws of the Or- 
der." 

A by-law could not be in contravention of the Constitution ; 
by-laws are passed for the purix>se of carrying into effect the 
provisions of the Constitution. The question is. does this by-law 
contravene the Consititution in any way. or fail in any way, or 
oppose in any w-ay, the carrying into effect the meaning of the 
Constitution. 



26 

Art. XL, Sec. i., says (referring to the officers) : 

"They shall be elected anmually by ballot, by a ma- 
jority of the votes casit," etc. 

Now, I am not a lawyer, nor the son of a lawyer. Francis 
Bacon refers to lawyers as "hair-splitters." I am not a "hair- 
splitter," but does a vote cast refer to a ballot sent by mail, pass- 
ing through the hands of anywhere from five to twenty people? 
I have always thought the word "ballot" in its very self, ex- 
pressed the idea of something cast — not sent by mail. Even in 
proxy voting one is authorized as a proxy to cast a vote. 
Colonel Nichoilson, Recorder-in-Chief, has been authorized to 
cast the vote of the Commanidery-in-Chief. This by-law is fur- 
ther faulty in this respect, that it does not provide for a continu- 
ation of the election in case there should be a failure to elect 
upon the first ballot. 

Here is something I wish to remark upon: "The by-law in 
question was adopted in due course, under methods of procedure 
governing the Ohio Commandery, by substantial unanimity of 
action." That fact is nothing in favor of the constitutionality 
of it ; it simply expresses the sentiment of the majority of those 
who were present. There was a minority, a respectable minority 
at least, if not a very large one, that saw from the vote, which 
was taken by ayes and nays, that their few small voices would 
have no efifect. ' At any rate, I think it better to be right with 
few than wrong with many. They refrained from voting, but 
the unanimity of the vote is nothing in favor of the constitu- 
tionality of the by-law. I am not so old but I can remember 
that certain States down South, with great unanimity, passed 
ordinances of secession, but I do not know that that "unanimity" 
affected the integrity of our Constitution in any way. All the 
argument which is set forth here which I have heard so far 
would be very good argument before Congress — 

Major Hosea— Wall Major Van Dyke permit me to ask 

him a question? I only wish to ask does his memory extend to 

the time when the soldiers on the field were permitted to vote? 

Major Van Dyke— Yes. ^ 

Major Huxford— How did the soldiers in the field vote. 

Did thev send their votes home by mail, or did an authorized 



27 

committee from their respective States collect the votes, the votes 
being personally cast? 

Major Hosea — I think it quite immaterial whether it was 
sent by Uncle Sam in his capacity as postmaster or sent on by 
individuals. 

General Brooke — As a majtter of fact, were they not cast 
upon the field aiid carried by duly authorized commissioners to 
their respective homes and there registered ? 

Major Hosea — Unquestionably, and the reason was to see 
that the vote of the soldier got into the balloit box as he desired. 
So under this by-law it is sent in a sealed envelope, covered by 
his own signature, and passed into the hands of the tellers that 
break the seals. 

General Brooke — I merely asked the question to correct 
a misapprehension as to the manner of sending the votes home. 

Major Hosea — I answered it, endeavoring to correct a mis- 
apprehension. 

General Brooke — It was not clear what you meant by that. 

Major Hosea — The vote was taken outside of the States 
in which the elections were held. 

General Brooke — Certainly. 

Major Hosea — Proper methods were used, naturally, to see 
that the vote was carried and deposited as the vote; of the soldier, 
just as this by-law takes precautions to insure the same result. 

General Brooke — It was deposited by the individual voter 
in a ballot lx>x prepared for the purpose ; was not tliat the case, 
Companion ? 

Major Hosea— In that case there was a State Messenger; 
I think the poll Ix^xcs were carried — how is that? — ^the poll 
boxes were carried by the messenger; but the whole point was 
that the soldier, instead of being required to go to the State and 
put his vote in the ballot l)ox there, was permitted to cast it 
where he was in the field fighting the enemies of his country. 
He was not deprived of that privilege of an American citizen 
simply because the exigencies of the case did not permit him 
to go to the polls at home and deposit his ballot in person. 

General Brooke— That is not the question I asked you. 
Did not the soldier deposit his ballot in person at a point desig- 
nated ? 



28 

Major Hosea — Unquestionably; just as in our ballot the 
voter deposits and puis his signature on it. 

General Brooke — I was simply asking that question. If 
you desire anything else, I will listen to it for an hour. 

Major Hosea — I was only endeavoring to answer ques- 
tions, as requested by the distinguished Companion on the other 
side of the table. 

General Brooke — I was simply interjecting for my own 
informajtion. 

Major Van Dyke — I still insist that a vote by mail is not 
a ballot. I will read a paragraph here : 

"It will be conceded that this provision does not 
attempt to prescribe the details of election methods fur- 
ther than to require a specific individual expression of 
each voter by a 'ballot,' in contradistinction to a viva 
voce voting or other loose methods liable to abuse." 

Well, of course, a z'iva voce vote may become the method 
or not. That is not the question ; but "other loose methods" are 
methods of sending votes by mail and calling them ballots. I 
know no looser method of voting than that, when they pass 
through the hands of a score of people, as I said. 

I will say, in conclusion, I believe it is the best possible 
thing to provide some means whereby, constitutionally, every 
member of the Commandery, whether he lives in the Philippine 
Islands, or Alaska, or South America, or Greenland, shall be 
enabled to cast his vote for the officers. As a matter of fact, 
this by-law did not produce fifty votes above the ordinary vote 
of the Commandery. 

Major Hosea— That is a mistake, also, Alajor Van Dyke, 
as far as it is worthy of noticing. It more than doubled the vote 
of the Commandery at any preceding election. 

Major Van Dyke — That does not cut any figure, either. 

General Brooke— If you are finished, the committee will 
retire and consider. 

General Warnock — No. we want to be heard on the merits 

of the case. 

General Brooke— Oh, very well. Have you finished? 
:Major Van Dyke— Yes, sir. 



ARGUMENT BY MAJOR HOSEA ON THE MERITS. 

Out of respect for the committee, and the personnel 
of the committee, although we deny its jurisdiction, we 
will present very briefly our views, under protest ; not wish- 
ing in any way to prejudice their action, for we recognize the 
delicate position in which this question places the committee, 
and the natural reluctance which they would feel in undertaking 
to detennine a question of this nature under these circumstances. 
We feel very great respect for the personnel of this committee ; 
we believe that they are intending to do their full duty. 

I desire at the outset ito again call the attention of this com- 
mittee to the fact that they are here as judges, not as legis- 
lators, and that it is their duty as judges to approach this ques- 
tion absolutely free fromi all bias. I trust and believe that no 
member of this committee has permitted himself to be influenced 
in any way by whatever might have been said to him prior to 
coming here, and, if so, I have sufficient confidence in this com- 
mittee to believe that they will divest their minds of all precon- 
ceived opinions, and approach the consideration of this ques- 
tion as an upright and honest judge should do. 

Gener.\l Brooke — I will interrupt you. sir, to say that 
this committee is composed of gentlemen, who are — 
Major Hosea — I realize that — 

General Brooke members of the Order of the Loyal 

Legion, and they propose to do what they conceive to be their 
duty, without fear, favor or affection. 

Major ITosea — We are endeavoring to prove that, Mr. 
Chairman, in a — 

General Brooke — I merely wish to assure you. so you can 
avoid any reference to that. 

Major Hose.\ — We assure you of that, notwithstanding 
that we object, and object strongly, to your jurisdiction; and it 
is necessary for me to bring your mind first to the fact that you 
are here not as members of a parliamentary body, not as mem- 
bers of a committee of a parliamentary l3ody, but as a committee 
of the judges who ultimately will pass upon this case. 

\\'e have to call your attention to that fact, for it is an un- 
usual and irregular proceeding for a judicial body to appoint 



so 

certain of its members to hear a cause in camera before the 
case comes on for hearing. Such a thing never was heard of. 
I have shown you that four hundred years ago it was denounced 
as contrary to law, and the matter has never been questioned 
from that time to this. We do not present these objections in 
any captious spirit ; we beheve that they they are fundamental , 
that they lie at the very foundation of this Order, and we are 
so firmly convinced of that that we desire to present these views 
to you again — and, if necessary, yet again — in order that you 
may clearly apprehend the grounds upon which we present them. 

Now, wdiat is this case ? Talking it from the record, you 
will find that at the October meeting of this Comniiandery, in 
1903, a by-law was unanimously passed which made this change 
in our by-laws as they theretofore existed, viz : That non-resident 
members of the Commandery finding themselves unable to be 
present at the Annual INIeeting in May shall have the privilege 
of voting for officers of the Commandery. If you have not a 
copy of the by-law there I can furnish it to you. 

General Brooke — We have it here. Sir. 

Major Hosea — It provided, in the first place, that a com- 
mittee of the Commandery should be appointed to select can- 
didates for the several offices, two for each of the offices to be 
filled ; that these names should be printed in the form of a bal- 
lot ; that a copy of them should be sent to every miember of the 
Commandery, and that non-resident members who found them 
selves unable to be present at a meeting should have the privi- 
lege of indicating on that ballot whom they desired to vote for 
for the several offices ; that that ballot should be placed in an 
envelope furnished and sent with it; that it should be sealed 
by the recipient and indorsed by his signature upon the outside 
thereof. We have the signature of every Companion of our 
Commandery on file here ; it was a mere matter of identification, 
just as your signature to a check is identified at bank. It fur- 
ther provides that at the annual meeting, when the tellers are 
appointed for the election these envelopes are passed into the 
hands of the tellers ; the tellers break the seal and deposit the 
ballot. This by-law, as the record will show you, was unani- 
mously adopted. No objection appears until in the month of 



31 

February following, wheni the appeal is taken by our distin- 
guished ex-Commander, Colonel Cadle. 

Understand, gcmtletnen, that while we are discussing mat- 
ters here, and we may perhaps be betrayed into some heat, I 
take it that you will understand that these things do not affect 
our cordial feelings all around among ourselves, and I trust that 
the committee will get no wrong impression on that line. 

That appeal does not say — Colonel Cadle does not allege — 
that he was in any way injured .by this action. He does not 
say that any rights were infringed by the action appealed from. 
He does not say that his rights or privileges in any way as a 
member of the Order, or that the rights or privileges of any- 
body else in the Order, are in any way impaired or infringed 
by this action. Yet he appeals from it. 

We say that this is not such an appeal as is contemplated 
under the judicial power of the Commandery-in-Chief. We 
show you b}' references which, as I say, it would not be neces- 
sary to adduce to any lawyer of experience, what judicial power 
is; what judicial power has alw^ays been. Another reference 
on that point — to show you how ancient are these principles for 
which we contend here — a case arose where the King's pre- 
rogatives were supposed to be in danger ; there was considerable 
friction. A certain case had come on for hearing before the 
Court of King's Bench, concerning rights between individuals, 
but, incidentally, as a matter purely collateral, some question 
of the King's prerogative arose. The Bishop of Winchester was 
present at that trial, and he hastened to the King and presented 
it as a case affecting the King's prerogative, and the judges 
were given to understand that in a case involving a question (,f 
the King's prerogative the King must first be consulted in the 
matter, before the judges should render their decision in the 
case. And the Bishop of Winchester said to the Court that if 
this was not done in this case the King would issue an order 
that the matter be held up. The Court went ahead and decided 
the case, however, and the judges were brought before the Knig, 
who, in great heat, began to castigate them verbally for this 
dereliction of their duty. The question was then put to them : 
"In a case where the King believes his prerogative or interest 
is concerned, and requires the judges to attend him for their 



32 

advice, ought they not to stay proceedings until His Majesty 
is consulted with?" And all the judges shouted, "Yes!" "Yes!" 
"Yes !" But Lord Coke replied : "When the case happens I shall 
do that zi'hich shall be tit for a judge to do." In other words, 
that his duty and his power under his oath as a judge did not 
permit him to pass opinions in advance of the actual litigation 
that came before him. 

And a further illustration of this very situation is found 
in an address by Judge Lurton, the distinguished Presiding 
Judge of our United States Court of Appeals, a couple of years 
ago, delivered before the Ohio State Bar Association. Answer- 
ing the assertion that the judicial power of the government 
was too great, he pointed out the essential weakness of the ju- 
dicial power is that it has no initiative ; it can not render opinions 
until a case arises between litigants which makes it necessary 
to do so. I need not show to your reason and intelligence as 
sensible and intelligent men how important it is to preserve that 
distinction in mind. If the Supreme Court of the United States 
could give an abstract opinion to every citizen who desired it 
this country could not exist a week ; it would overturn the gov- 
ernment ; and the Supreme Court is no stronger in that respect 
than any court in the land. It has no power to say what the 
Constitution is, or what it means, or what it does not mean, 
until a case arises between individuals, wherein, incidentally 
to the relief required ito be administered in that case, it may be 
necessary to determine a constitutional question. 

That is the principle we contend for here ; that because a 
member of this Comimandery desires to get, in advance of a case 
arising, an abstract opinion as to what the constitution means in a 
given case, that he shall not have this right to come to the Com- 
mandery in Chief and get it. We point you to these precedents, 
going back for four hundred years ; we point you to the constitu- 
tion of the Order, which says that your power in this respect is 
simply a judicial power of the Order. 

Another word of explanation : The constitution of this 
Order all the way through, is — as Webster characterized the 
Federal constitution, — an instrument of enumeration, not of 
definition. Do you suppose that the framers of our constitution, 
when they conferred judicial power upon the Commandery-in- 



Chief did not know what it meant ? Do you suppose they did not 
know that it did not mean the power to give an opinion upon this, 
that and the other thing, upon the mere request of any member 
of the Order? Can you not see that such a rule would be sub- 
versive of the rights of every mem.ber of this Commandery, and 
of the Order itself? 

The donstitution of the Order says that each Commandery 
shall have the power to adopt such rules and regulations for its 
own government as shall not conflict with the constitution of the 
Order. What does that mean ? Why, simply that for purposes 
of local self-government each Commandery is supreme within, 
its sphere — as limited by what? The only provision with respect 
to the election of officers is merely that the election shall be by 
ballot. Now what does that mean? Every man of experience 
knows that where you have in any Order an opportunity for viva 
voce voting, — proxy voting, — an opportunity for voting in any 
way other than by ballot where every man expresses his opinion 
in some settled and distinct form, — you have an opportunity for 
carrying people off their feet, and voting for this man, or that 
man, who for the time being and for the moment may be popu- 
lar; just as we elected officers in our Civil War — before we 
learned better — because this or that man was the popular hero 
of the hour ; and we know what followed from that practice until 
we got rid of it. 

Now here we present, as we think, a method of procedure 
strictly within our powers ; an action which does not affect any 
other Commandery of this Order : an action which we say is in 
accordance with the constitution — that is, a vote by ballot. This 
is a provision under the operation of which the majority of the 
ballots shall elect. It is; a provision under which, if the first ballot 
is not decisive, those present will cast the next ballot. \\'e can 
not help nonresident members any further than that. We can 
give them an opportunity to vote in the first instance, with the 
privilege — if they do not want to vote for those nominated upon 
the official ticket — that they can vote for some other name. But 
this, gentlemen, is a mere matter of the working out in detail of 
the operation of this by-law, and does not change the question 
before us, whether or not the by-law is in accordance with t'le 
constitution. 



34 

I say, that it is not only in acocrdance with the letter of tiie 
constitution, but it is in acocrdance with its spirit in every way. 
How are you going to ascertain the spirit of the constitution? 
Why, from the instrument itself, naturally and of course. That 
is a plain legal proposition, which has always been a rule of law 
for time out of mind. If you look carefully through thi'j consti- 
tution, you will find this : that, wherever else it touches upon a 
question of voting, it prescribes particularly how that vote shall 
be cast, namely, by a majority of the members present at a meet- 
ing — in every other instance ; and there are some thirteen of 
them. Now we have a maxim of law which is a very good maxim 
in common every-day life — "Expressio iinius ^ est exclusio 
alterius" — the mention of one thing is by inference the exclusion 
of another. And in this constitution in every other instance 
where voting is specified you find prescribed the exact method of 
voting ; but in this one instance where it touches local self-govern- 
ment of a Coraniandery, there is no definition, except the limita- 
tion to a ballot, and to a certain date. 

Certainly there must have been some meaning to that. If it 
was the intention of this instrument to require the officers of a 
Commandery to be elected by the votes of those present, why 
didn't it say so ? There are very good reasons why it did not say 
so; because it provides among other things that under certain 
circumstances 15 members may constitute a quorum for business. 
In the State of Ohio we have had a membership for many years 
past of about 900 ; our total vote for the ten years preceding, in 
any one year, up to the last election — and here I want to touch 
upon a remark of my friend. Major Van Dyke — the largest total 
vote in any one year was 147 ; the lowest vote in any one of the 
ten years was 62 — out of a membership of 900. In the very first 
year of the operation of this letter ballot the total vote jumped to 
267 ; next year the vote under it will be 500. 

Can you say that is unfair or inequitable which is in- 
tended to give the widest possible opportunity for members of 
the organization to assert their rights ? Can the gentlemen on the 
other side point to one single instance — and I challenge them tc 
do it — where the operation of this by-law is unfair to anybody — 
where it infringes any rights of anybody? — where it in any re- 
spect is not equitable, fair and honest ? 



Gentlemen, there was a time when, with our ^uns upon our 
shoulders, our swords by our sides, we risked our lives in defense 
of principles of right, of fairness, of decency, of equity- ; shall 
we stultify ourselves at this late day by undertaking to set aside 
that which is in accordance with the letter of our constitution; 
that which by ever}" proper consideration is in accordance \\"ith 
its spirit, and where no one appears to tell you that it operates 
imfairly, that it infringes anybody dse's right that it is not in 
ever}- way conducive to the best interests of the Commander}- ? 

I may for one moment address to one member of this Com ■ 
mittee an argum.ent applicable in the District of Columbia. There 
you have your whole membership confined within ten miles 
square : you may not find it necessar}- to adopt any such by-law as 
this, and you need not do so if you do not vrant to ; but is that a 
reason why we should not adopt it in Ohio? \\"e have our mem- 
bership scattered all over the State of Ohio: we have in Ohio 
about 585 numbers, of whom 139 — say 140 in round numbers — 
reside in Cincinnati. Our vote for ten years, excepting one single 
year, has not exceeded 140. and then it was only 14.7. We have 
outside of the State of Ohio in other States of the Union 269, 
if mv memoT}- is correct about the figures — ^but that is not ven.- 
material, it is in that neighborhood — 269. We have in foreign 
countries. 13 : our total membership today is in the neighborhood 
of 800. Can you not see. therefore, how equitable and fair a 
thing it was for us, who realized that for twewty years the non- 
resident membership of this Commander}- had been practically 
denied their power of voting for officers — ^there was nothing 
strange about it — that we should desire to extend to them a 
priWlege which had been so long denied them. And how have 
we extended it? By sim.ply extending the conduit of the ballot 
box to the voter. That is what we have done, and nothing else. 
We have simply made the postal sen-ice of the Government of 
the United States, which is the conduit for ever}-body's messages, 
the conduit for that message which bears the ballot of a member 
irom himself to the tellers at the elections. That is what we have 
done. That man deposits his ballot in the ballot box just as 
much when he puts it in the mail in Qeveland, by even.- intend- 
ment of the law. as if he were here in Gncinnati depositing it in 
the ballot box here — if we had one ! But we have none : we have 



36 

never had a ballot box. The tellers are the custodians of the 
ballots ; and the man's vote sent by mail under cover, under seal 
and verified by his own signature, goes into the hands of the 
tellers intact. 

Now who is there to complain? ]My friend, Major Van 
Dyke, suggests that he understands that a ballot is something 
that is "cast." Well, I do not want to enter upon a quibble of 
words. That goes back to the good old Greek times when the 
thing was done in that way ; — when the ballot was inscribed ;ipon 
a shell. But is there a member of this Commanderv, or an\ one 
else, within sound of my voice that does not know that in everv 
corporate body where a ballot is required there is a requirement 
that it shall be wTitten upon a piece of paper? Is there anvbodv 
that does not know that the ballot which every American citizen 
deposits to register his will at the polls is a small piece of paper 
with names printed upon it? Why, it is idle to talk about a 
question of that sort. 

With these very disjointed remarks, gentlemen, I will close 
what I had to say. 

I think you will see that we are sincere in our desire and 
intent to maintain this by-law. We intend to maintain it if pos- 
sible before the larger body by which you are appointed. 

We have, with due respect — and we certainly feel ver\' great 
respect for the personnel of this committee — we have felt it neces- 
sary that we should interpose our objection, which was somewhat 
technical, because we felt that this method of treating a judicial 
question has within its body, like the Trojan horse, naught but 
disaster to this Commandery. If judicial questions affecting vital 
issues like the constitution of the Order are to be referred to a 
committee under a resolution which makes no provision whatever 
for an argument or for any consideration except what it may see 
fit to give to it. how long is it going to be — not now — but how 
long will it be before somebody will take advantage of that and 
get something done which would be disastrous to this Order ? 

We are Americans all, gentlemen, and we propose to insist 
upon our rights. If we are tenacious of them, I know that this 
Committee will not consider that to our detriment. Our ancestrt' 
and our experience teach us to be a little careful and cautious 
about what we consider our fundamental rights. We think this 



37 

is a question involving fundamental right. We say there is no 
case here for your consideration, because there is no appeal here 
upon a judicial question. If these gentlemen had objected to this 
matter at the time, non constat, if they had presented suf- 
ficient reasons, it never would have been passed. But the record 
shows that it was passed unanimously. These gentlemen were 
present. Why did they not then interpose their objections? Are 
we to understand that my friends in theii old age have become 
so modest that because the vote upon the affirmative of the 
proposition was so strong as to show the sentiment of the Com- 
mandery, that they did not have the manliness to step forward 
and record their protest against it ? 

No, gentlemen, this appeal — I think I am justified in say- 
ing, as a matter of inference from the record — was an after- 
thought; but whether it was, or not, it is nothing more than an 
effort to obtain from the Commandery-in-Chief an opinion, an 
abstract opinion, an academic opinion, that they have not any 
power to render. 

Gentlemen, I think you very much for your attention. 



ARGUMENT UPON THE MERITS BY GENERAL 
WARNOCK. 

Mr. Chairman and Gentlemen of the Committee: 

The Ohio Commandery, some months ago, believing it to be 
for the l^est interests of the Commandery, because of the fact that 
its membership was so very widely scattered, and in order that 
the Companions resident in other States and in distant portions 
of this State, should have some voice and some interest in the 
matter, passed a by-law by which a Companion desiring to par- 
ticipate in the election of officers might write in the ballot which 
was sent to him the name of each distinct office he desired to be 
filled, together with the name of his candidate for said office, and 
then place his own signature upon the ballot, seal and transmit it 
to the Recorder, the ballot to be counted the same as ii the 
Companion himself were present. By that act no one was desig- 
nated as his proxy. No proxies were authorized, as was indi- 
cated by tile i)hraseology of the Order, which authorized the 



38 

existence of this Committee. There is no question of that kind 
involved. 

There seems to be an utter misunderstanding of what we 
were complaining about, if anything, or as to who made the com- 
plaint, in the Order that was made appointing this Committee. 
The Ohio Commandery is not here complaining about its own 
action ; on the other hand, the Ohio Commandery is here insisting 
that it did right, that it acted for the best interests of the Com- 
mandery, and that it had the right under the provisions of the 
constitution to enact its own by-laws and regulations, as is found 
on page 29, "Each Commandery shall have power to adopt rules 
and regulations for its own government which shall not conflict 
with the Constitution and By-Laws of the Order." 

Now what was the reason for this action on the part of the 
Ohio Commandery? Outside of the city of Cincinnati and its 
immediate vicinity there is a total membership of 585 scattered 
among different S'tates and scattered over the extreme limits of 
the State of Ohio, 300 miles away from this city. (A voice : 
"Some in foreign countries.") In the city of Cleveland we have 
100 members, 300 miles distant from this place. It is a rare 
occasion that will bring out more than half a dozen men from that 
distant city. We feel that this large membership at Cleveland 
and Akron ; 46 in the State of Tennessee ; 26 in the State of 
Kentucky ; 4 in Alabama ; 10 in California ; 9 in the District of 
Columbia; 8 in Louisiana; 21 in New York; 3 in Oregon; 10 in 
Pennsylvania — scattered as they are hundreds of miles apart 
throughout this country, and paying $3,385 of the dues that are 
paid every year, and the membership living here paying only 
$1,385 — the Companions outside of this city thus paying two- 
thirds, yes, three-fourths of all the dues ; and with the infirmities 
of age creeping upon them, all these men unable to come here 
are absolutely and utterly disfranchised under the old provision 
that we had. Isn't there any equity in this action? So univer- 
sally was it conceded to be just and right that not a single dis- 
senting voice was heard when that action was taken — not one. 
And we are told here that there was a respectable minority — yes ! 
it was a minority. It was respectable, but it was so minimized 
that it would require almost a microscope to see it. They did not 
have the courage as they said, on that occasion to protest or to 



39 

give expression to any rig-hts tliat thev may have had ; and three 
months after tliat date — three months — write a letter to the 
Recorder, asking that it be forwarded in the nature of an appeal ; 
and that is the reason we say that there is no case before you, 
gentlemen. Many persons have lost legal rights by sitting silently 
by and not asserting them. It is a familiar principle, well known, 
that a person to preserve his rights must act with diligence in 
order to preserve those rights ; and miany persons have sat by and 
seen rights taken from them without uttering a word of com- 
plaint, and having been adjudged in that case to have been negli- 
gent, they have been given no relief. We claim that there is not 
any case for you to act upon ; that there is no appeal that was 
taken until three months afterwards, and then only a letter by a 
single member of the Ohio Commandery. 

Look at the equities in this case. Now it is said that this is 
in conflict with the Constitution of our Order. What is the 
provision of our Constitution? It is found in Article XL, Section 
I, to the effect that the officers shall be elected annually by ballot. 
It is said that this mode of electing, of sending these ballots 
through the mails, with the man's name signed to it, upon the 
official ballot that has been sent to him to be filled out, is in 
derogation of the constitution. What is a ballot? Why, origin- 
ally it did not mean anything a1)OUt paper either printed or writ- 
ten upon ; originally a vote by ballot was a ball deposited in a box ; 
and if you stand strictly upon the technical mjcaning of the word 
"ballot,'' it must be a "ball." But since that ancient ])ractice has 
long gone out of use we have now come to regard a "ballot" as a 
written or printed ticket. That is wdiat it is. There is nothing 
in the meaning of the word that demands that it shall be cast in 
person, not a single iota. Let me give you an illustration of how 
modern usages and modern facilities have changed the method of 
not only voting, but in many instances in our court proceedings 
as well, we have passed the barbaric ages. We have passed those 
archaic times when men wrote on the bark of trees. We have now 
arrived at a liberal interpretation of these matters. 

For instance, with regard to one institution of learning in- 
corporated under the laws of Ohio, there is a provision that its 
alumni trustees must be elected by ballot. That institution is not 
simplv an order composed of gentlemen who have banded together 



40 

for certain noble and patriotic purposes. It is a corporation or- 
ganized under the laws of the State of Ohio. Now it has been 
decided by the courts that the provision regarding the election of 
the alumini trustees by ballot shall be interpreted to permit them 
to cast their ballots for such trustees by writing their preference 
on a piece of paper and putting it in an envelope and signing their 
own name upon it, and sending it in to the Secretary of the Board 
of Trustees ; and it is there opened by him and counted, just as 
are the ballots of those present in person. (A voice: "It is sent 
by mail.") Sent by mail. The same is true of Yale and Harvard, 
institutions incorporated under statutory provisions. 

Why, there is no such sacredness surroimding that word 
"ballot" as to impress upon it that old archaic usage. We have 
gotten out of that. At the present time the law permits even 
service on a witness to be made by telephone, and you may serve 
a man with notice involving his property rights by mail, although 
technically speaking a personal service is required. Why, so 
sacred have the United States mails become that its services are 
resorted to in all these matters that are vital to a man's personal 
and property rights. Yet they stand up here and say that a 
"ballot" is something that must be cast, as though there wag 
something sacred in the manipulation of the paper, in dropping it 
into the ballot box which would be destroyed by any other way 
of getting it there. The United States mails is as sacred a 
medium as the dropping of a piece of paper into a hat, or a box, 
or upon a table ; and I claim that there is not any provision of our 
constitution that is violated by reason of the fact that we have 
adopted the United States mail as a means of doing justice to 
more than two-thirds of the membership that has for years been 
deprived of the right of franchise. Let us see what the voters say : 
In 1894 there were only 105 votes cast; in 1895, there were 147; 
in 1896, 115 ; in 1897. 1 15 : in 1898, 105 ; in 1899, 69 ; in 1900, 62 ; 
in 1901, 120; in 1902, 119, in 1903, 126; in 1904, the first year of 
the operation of this new provision, 267. Why, heretofore, under 
the old provision that required a man approaching, as the majority 
are now, three-score years and ten, to come 100 miles, or 200 
miles, or 300 miles, in order to put a ballot in a box or on a table, 
permitting the 145 men who live in Cincinnati and who can 
come in person, to have the absolute power of dictating every 



41 

office and every measure that affects the vitaHty and the pros- 
perity of this Order ; and yet they were generous enough, mag- 
nanimous enough, at a meeting composed largely of those very 
same men, to say : "We will grant you the right — you gentle- 
men that live loo miles from Cincinnati, you gentlemen that live 
300 miles away, as 100 of them do in the northeastern part of the 
State, we will give you some consideration ; we recognize the fact 
that the years have grown and that you have borne your share of 
the burden ; you shall have a voice ; you are paying two-thirds of 
the expenses, you are paying $3,300 a year, and we are only pay- 
ing $1,300 here, we will let you have a voice in the affairs of the 
Commandery." Is there not equity in that, and justice, and 
right? The Military Order of the Loyal Legion was not created 
for the purpose of permitting a few men in Cincinnati, or in 
Philadelphia, or in any other city to dictate its policy and fill all 
its offices, and to run it to suit themselves. The rest of us have 
some rights, and are entitled to some consideration. The Ohio 
Commandery is not complaining about this very respectable 
minority for coming in at a late day ; but we have a grievance 
when we say that we were all deprived of the constitutional right 
to make our own by-laws so long as they are not in conflict with 
the constitution of the Order, and that only provides that the 
election shall be by ballot. We claim we are voting by ballot. 

Another thing: I find in looking through this constitution 
and by-laws, a great many other places where it speaks of the dif- 
ferent votes. In one place it says, a vote shall be taken, and it 
shall require two-thirds of the members present at the meeting. 
I find, turning over to another place, in speaking of the vote, it 
says a majority vote of the members present. I find several in- 
stances where the constitution refers to a vote, that it shall be 
confined to the "members present." In no place where it requires 
a ballot to be taken docs it require that the ballots shall be the 
ballots of the majority of those who are present. It does not say 
that — it docs not say that. And where that is not expressly 
stated, as has been well said by Judge Hosea, in his opening, it 
not having been expressed must excluded. So then we are fairly 
left to the inference that the framers of this constitution meant 
that it must be by ballot, but that it need not be by a ballot of 
"those present." 



42 

I do not like to consume further time in regard to this mat- 
ter ; but we do feel keenly here that we will be deprived of one of 
the rights granted us by the constitution if we are not permitted 
to do justice to these men who constitute the larger part of our 
membership and contribute two-thirds of the financial support to 
the institution. 

In closing, gentlemen, I simply revert again to the proposi- 
tion that this is an appeal taken after the adjournment of the Com- 
mand'ery of 1903, and that it comes up before the Commandery-in- 
Chief of 1904 ; that it is contemplated even by this Order which 
has been read in the record that your report is to be made to them, 
and I claim that ab initio the Commandery-in-Chief sitting in 
1904 should originate the entire proceeding in this matter. 

It is not a personal matter to this Committee, but it is a legal 
right that we have, to have the Commandery-in-Chief take such 
action and to name such committee, and if it be this Committee, 
we will be well pleased ; but that we think it an infringement of 
our constitutional rights to have the Commandery-in-Chief sitting 
in 1903 appoint a general committee, a sort of omnium gatherum 
of grievances which ithey are to hear, and then make its report to 
the Commandery-in-Chief, before which committee we can only 
appear after your minds have been preoccupied. And I do not 
care how honorable a man is, if he has made up his mind, you 
have to efface what he has got in there in some way before he can 
hear the case impartially. 

With these few remarks I respectfully submit the matter for 
your consideration. 

General Brooke: Anything further, gentlemen? If not, 
the Committee will go over the matter in their room-. 

Whereupon the Committee retired to consider. 



THE BY-LAW APPEALED EROM. 



BY-LAW III. 
Nomination and Ballot for Officers. 

Section 1. At the stated meeting of tlie Commandery in February 
of each year the Commander shall appoint a committee of seven to 
nominate a ticket to be voted for at the annual meeting held in May of 
each year. 

This Committee shall be called together by notice from the Re- 
corder at least sixty days previous to the annual meeting, when they 
shall proceed to nominate two Companions for each office (being ten 
for the Council) to be filled, and to report the same to the Recorder, 
who shall cause a copy to be posted in the office of the Commandery 
within ten days thereafter for the information of Companions. Within 
ten days after such posting, on presentation to the Recorder of a 
petition signed by at least ten Companions, asking that another Com- 
panion be named, such Companion shall be placed in nomination for 
any of the offices to be filled at said annual meeting. The Recorder 
shall cause such Companion so named to be forthwith so posted as a 
nominee for the office named in the petition. Such petition may name 
one Companion for each office to be filled at such annual meeting, and 
any number of such petitions may be so filed, but no Companion's 
name shall be counted as a petitioner if it appears on more than one 
petition recommending more than one Companion for the same office. 

Sec. 2. At the stated meeting in April of each year the Commander 
shall appoint iwo tellers and two clerks of election, to serve as such, 
for the annual election of officers. In case of the disability of either 
of the tellers or clerks, the Commander shall fill the vacancy at the 
earliest date practicable. 

The Recorder shall furnish said tellers and clerks a copy of the 
rules on this subject, by which they shall be strictly governed in the 
performance of their duties at said election. 

Sec. 3. The Recorder shall have printed on one ticket the names 
of all Companions properly nominated in accordance with the pro- 
visions of Section 1, and forward a copy of the same to each Companion 
with his regular circular of announcements for the May meeting, with 
the request that he indicate with a cross (X) mark, in ink or with an 
indelible pencil, the name of the nominee for each office for which he 
desires to vote, seal the same, write his name on envelope and return 
the same to the Recorder in the envelope furnished'^him for the purpose. 

Companions who do not so return their ballots by mail may vote in 
person at the annual meeting. 

Sec. 4. Immediately after the reading of the minutes at the annual 
meeting the tellers and clerks shall take a convenient place in or near 
the assembly room of the Commandery; the Commander shall declare 
the polls open, and Companions present may then deposit their ballots, 
and the Recorder shall then deliver to the tellers all ballots of Com- 
panions received by mail, to be counted as ballots cast in person. 
When a reasonable time has been allowed for the casting of the ballots 
(to be determined by the Commander, or by the Commandery if objec- 
tion be made to the Commander's decision) the Commander shall de- 
clare the polls closed; after which no ballots shall be received. The 
tellers and clerks shall then retire to a private room, ascertain the 
result of the ballot, and report to the Commandery; and those having 
a majority of the votes cast for each office to be filled shall be declared 
by the Commander as duly elected to serve during the ensuing year. 

Unanimously adopted November 4, 1903. 



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